The work done by a police officer prior to the commencement of a criminal prosecution may relate to the investigation of a suspected crime, to the questioning of a suspect, to the obtaining of witness statements from prospective witnesses and to the preparation of a witness statement relating to the evidence which he himself may give at the prospective trial. The issue which arises on this appeal concerns the width of the absolute immunity from civil action granted to the police officer in respect of such work.

The plaintiffs Head, Lamont and Clark together with David Stanley Docker (now deceased who sues by his personal representative) were indicted on counts alleging conspiracy to import cannabis resin. The plaintiffs Lamont, Rhodes, Clark and Docker were indicted on a count alleging conspiracy to forge American Express Travellers' Cheques. The plaintiffs were charged following an undercover operation conducted by members of No. 4 Regional Crime Squad. The undercover operation involved the use of two undercover police officers and a police informant named Titley. The arrest of the plaintiffs took place between 16 May and 15 July 1992. All the plaintiffs were remanded in custody, and some remained in custody until the trial commenced in August 1993 at Wolverhampton Crown Court before His Honour Judge Gibbs Q.C. The trial was beset with a number of problems, many of which stemmed from the fact that the defence were dissatisfied with the disclosure made by the prosecution. This resulted in the trial judge making orders for disclosure which, regrettably, were not complied with. The fault for this lay with the police and was not due to any default by prosecuting counsel or the Crown Prosecution Service. In addition, the informant Titley, who was to be called as a prosecution witness, proved to be elusive and Detective Constable Ledbrook, a police officer central to the prosecution and to the allegations by the plaintiffs of wrongdoing by the police, was unavailable for attendance at court for medical reasons. On 28 September 1993 the trial judge gave a lengthy and careful ruling in which he held that the police had been significantly at fault in the disclosure process and he directed that the charges be permanently stayed on the ground of abuse of process and the plaintiffs were accordingly discharged.

The plaintiffs then commenced an action against the Chief Constable of the West Midlands Police claiming damages for conspiracy to injure and the tort of misfeasance in public office committed by police officers under his direction and control. No claim was brought for malicious prosecution. A statement of claim was issued and served on 24 March 1995 and an amended statement of claim was served on 6 October 1995. The Chief Constable's defence was served on 30 January 1996. It is agreed between the parties that the plaintiffs' allegations can be summarised as follows:

2. Two police officers (Ledbrook and Lowbridge) conspired to cause the plaintiffs to be charged with offences which they knew or believed to be false.

3. Police officers (Ledbrook and Lowbridge) knowingly instructed undercover agents to breach police instructions of operation, in particular breaching the instruction that 'a police officer must not act as an agent provocateur'.

4. P.C. Ledbrook acting as the handler for the police informer knowingly allowed and/or incited the informer to fabricate evidence.

5. Two police officers (Ledbrook and Lowbridge) manipulated the police informer to prevent the Plaintiffs having a fair trial. In particular, refusing to comply with the judge's directions on pre-trial disclosure.

6. P.C. Ledbrook covertly shared in the proceeds of reward monies given to the police informer.

7. Police officers (Ledbrook, Lowbridge and others) used Titley as an agent provocateur and/or entrapper in an attempt to implicate the plaintiffs.

9. Lowbridge and/or Ledbrook concealed from the plaintiffs during the course of their criminal trial the fact that Titley attended the No. 4 Regional Crime Squad Christmas party.

10. P.C. Ledbrook and/or Lowbridge together with Titley engaged in similar conspiracies to injure other persons in strikingly similar circumstances."

The Chief Constable applied to strike out the statement of claim and on 27 September 1996 Maurice Kay J., following the principles stated by the Court of Appeal in Silcott v. Commissioner of Police for the Metropolis [1996] 8 Admin.L.R. 637, struck out the amended statement of claim and dismissed the action.

The Court of Appeal dismissed the plaintiffs' appeal in a judgment delivered by Auld L.J. In his judgment the learned Lord Justice considered the immunity given to a witness in court proceedings and cited at page 14 a portion of the judgment of Drake J. in Evans v. London Hospital Medical College [1981] 1 W.L.R. 184, 192 B-D:

" It is for these reasons that I think that the words used by the Court of Appeal in Marrinan v. Vibart that immunity protects witnesses in their evidence before the court and in the preparation of the evidence which is to be given, cover and were intended to cover the collection and analysis of material relevant to the offence or possible offence under investigation, and were not intended merely to cover the preparation of the witness's formal statement or proof of evidence.

. . . the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated."

Auld L.J. then observed that this test had been adopted by the Court of Appeal in Silcott. The immunity which the Court of Appeal held the Chief Constable in this case was entitled to claim on behalf of the officers against whom the allegations of conspiracy and misfeasance were made is an immunity derived from the protection given to a witness in respect of his statements in court. It is therefore necessary to consider the basis of this immunity and the manner in which it has been extended.

The core of the immunity

The rule that a party or witness has immunity in respect of what he says and does in court has been established for centuries. In his submissions to the House Mr. Newman Q.C. cited the judgment of the King's Bench in 1585 in Cutler v. Dixon 4 Co.Rep. 14b, 76 E.R. 886:

"It was adjudged, that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he should be bound to his good behaviour; in this case the party accused shall not have for any matter contained in such articles any action upon the case, for they have pursued the ordinary course of justice in such case: and if actions should be permitted in such cases, those who have just cause for complaint would not dare to complain for fear of infinite vexation."

"no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice."

As Auld L.J. observed in the Court of Appeal at page 8 the plaintiff's claim in that case related to the defendant's oral evidence before a military court of inquiry and also to a written statement containing in substance a repetition of that evidence which the defendant handed in to the court of inquiry immediately after he had given his evidence, and the reference to "anything . . . done" was probably intended to cover the submission of a written statement to a court. The reason for the rule is grounded in public policy: it is to protect a witness who has given evidence in good faith in court from being harassed and vexed by an action for defamation brought against him in respect of the words which he has spoken in the witness box. If this protection were not given persons required to give evidence in other cases might be deterred from doing so by the fear of an action for defamation. And in order to shield honest witnesses from the vexation of having to defend actions against them and to rebut an allegation that they were actuated by malice the courts have decided that it is necessary to grant absolute immunity to witnesses in respect of their words in court even though this means that the shield covers the malicious and dishonest witness as well as the honest one.

The extension of the immunity to the proof of the witness's evidence given before trial

In order to enable a case to be prepared for hearing, a witness will before trial almost invariably give a statement of the evidence which he will give in court to the solicitor for the party who proposes to call him. It is apparent that the protection given to a witness in respect of his words in the witness box would be easily outflanked if the immunity given in respect of the words spoken in court did not also cover the words spoken by a witness or a prospective witness in giving his proof of evidence before the commencement of the trial. It was for this reason that in Watson v. M?Ewan [1905] A.C. 480 this House held that the privilege which protects a witness from an action for defamation in respect of his evidence in the witness box also protects him in respect of a statement made to a solicitor in preparing his proof of evidence for trial, and the Earl of Halsbury L.C. said at page 487:

"It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justicenamely, the preliminary examination of witnesses to find out what they can prove."

The extension of the immunity to protect witnesses against an action alleging a conspiracy by them to make false statements in court

The protection given to a witness against an action for defamation in respect of the words which he speaks in court would also be outflanked if the immunity did not operate where an action is brought against two or more witnesses or prospective witnesses alleging a conspiracy by them to make false statements in court. In Marrinan v. Vibart [1963] 1 Q.B. 528, two police officers gave evidence on a criminal prosecution against other persons that the plaintiff had behaved improperly by obstructing a police officer in the execution of his duty and subsequently gave similar evidence at an inquiry before the Benchers of Lincoln's Inn into the conduct of the plaintiff. The plaintiff brought an action against the police officers alleging that they, together with another person, had conspired to injure him by making false and defamatory statements about him. The Court of Appeal held that the immunity given to a witness was not confined to barring an action for defamation but extended to bar an action alleging conspiracy to make false statements in court. The decision of the High Court of Australia in Cabassi v. Vila (1940) 64 C.L.R. 130 is to the same effect, Starke J. stating at page 141:

"But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared (Watson v. M?Ewan), given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice."

The extension of the immunity to the preparation of evidence

Whilst it is clear that immunity applies to a statement which is prepared before the trial setting out what the witness intends to say in court, more difficult questions arise as to whether every act which could be regarded as the preparation of evidence comes within the ambit of the immunity.

In Evans v. London Hospital Medical College (University of London)and others [1981] 1 W.L.R. 184, the defendants employed by the first defendant carried out a post mortem investigation on the body of the plaintiff's son. The investigation found that certain organs in the body contained concentrations of morphine and this information was given to the police and/or the Director of Public Prosecutions in the form of statements. In consequence the plaintiff was charged with the murder of her son by morphine poisoning. After further investigation by toxicologists on her behalf the prosecution offered no evidence at her trial and she was acquitted. She brought an action claiming damages for negligence against the defendants in which she alleged that the defendants had been negligent (inter alia) in allowing the organs removed from her son's body to become contaminated with morphine and in failing to appreciate that the high concentration of morphine revealed by analysis was unlikely to have existed in the child while he was still alive. Drake J. held that the defendants were entitled to absolute immunity and upheld the decision of a master dismissing the action.

In Taylor v. Director of the Serious Fraud Office [1999] 2 A.C. 177 an investigator employed by the Serious Fraud Office was investigating a fraud. In the course of the investigation she made observations about the two plaintiffs which they claimed were defamatory of them, and one of the persons whom she interviewed also made observations to her which the plaintiffs claimed were defamatory. This House held that the absolute immunity from suit which applied to witnesses in respect of statements made in court extended also to out of court statements which could fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution. Lord Hoffmann stated at page 214G:

"It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings. I therefore agree with the test proposed by Drake J. in Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184, 192:

"the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated."

This formulation excludes statements which are wholly extraneous to the investigationirrelevant and gratuitous libelsbut applies equally to statements made by persons assisting the inquiry to investigators and by investigators to those persons or to each other."

In Taylor the House was considering the test stated by Drake J. in relation to statements and not in relation to conduct and no question arose as to the fabrication of evidence or the planting of evidence; the issue was confined to whether communications between investigators and persons assisting in the inquiry which was conducted with a view to a possible prosecution were covered by absolute immunity.

In Silcott v. Commissioner of Police for the Metropolis (1996) 8 Admin.L.R. 633 the plaintiff alleged that two detective officers had fabricated notes purporting to be a contemporaneous record of admissions to a murder which he had made to them in the course of an interview. At the trial of the plaintiff for the murder one of the two police officers was the only witness against the plaintiff. He produced the notes and said in evidence that the other police officer had written the notes and that he had countersigned them. He did not say that the plaintiff himself had signed the notes. It is therefore relevant to observe that the notes themselves did not constitute evidence but that they were used by the police officer in the normal way to refresh his memory in the witness box. In his action the plaintiff pleaded three causes of action:

(1) Conspiracy to pervert the administration of public justice;

(2) Misfeasance in a public office; and

(3) Malicious prosecution.

A Master struck out the first two causes of action and his order was upheld by the High Court and the Court of Appeal.

In his judgment in the Court of Appeal Simon Brown L.J., after citing the authorities relating to the absolute immunity of a witness in court proceedings and the policy considerations underlying it, stated at p. 640A:

"The same policy considerations as underlie the immunity rule in its most direct and obvious application, ie, where statements have been prepared for proceedings and evidence has then been given, to my mind apply with equal force to the present situation. Protection must extend to the preparation of evidence equally as to its presentation. Similarly, it must extend to encompass any subsequent s.17 inquiry, such as here took place. I see no difference in principle between a police officer fabricating a record of interview in writing, and the equivalent in times past, a police officer verballing an accused; nor between say, an officer planting a brick or drug on an accused so that someone else will give truthful evidence of having found it, and an officer giving false evidence that he himself found such a brick or drug.

In my judgment, Drake J., was correct in Evans to have held that the immunity covers all conduct that can fairly be said to be part of the investigatory and, I would add, preparatory process. To Lord Williams' submission that there is no public interest in protecting those who create false evidence or, for that matter, those who destroy sound evidence, I would answer that that misses the essential point: the public interest is in the protection of those who might otherwise be falsely accused of such conduct."

Auld L.J. followed and endorsed this reasoning in the present case and stated in his judgment at p. 18:

"If the immunity rule is to be true to the public policy reasons for it, there is no logical basis for distinguishing between making witness statements and investigation and other preparatory conduct with a view to making them.

Although the conduct in question must, to qualify for immunity, be of such investigatory or preparatory nature, it does not cease to be so, or the line does not move, according to the seriousness of the allegation made about it. Thus, as Simon Brown L.J. observed in Silcott, the 'planting' of evidence or 'fabrication' of evidence with a view to its presentation in court is no more heinous or less entitled to protection than the giving of the false evidence based on that conduct. The evil of the conduct alleged is irrelevant; it is assumed to be true for the purpose of the rule - all for the greater good of the justice system, not to protect any individual alleged wrongdoer."

My Lords, there are passages in the authorities which support the reasoning of Simon Brown L.J. and Auld L.J. In Marrinan v. Vibart, although the plaintiff's allegation of conspiracy related to the preparation of statements of the actual evidence which the police officers would give, Sellers L.J. commenced his judgment at page 533 with the statement:

"Those who take part in the administration of justice (and it is one of the important functions of police officers to obtain and bring evidence before the court) must be free from the fear of civil proceedings."

And in Evans v. London Hospital Medical College at p. 191H (in a passage cited by Neill L.J. in Silcott at p. 642) Drake J. stated:

"I think that the immunity must extend also to the acts of the witness in collecting or considering material on which he may later be called to give evidence. If it does not so extend then a convicted person could, for example, sue the police officers for the allegedly negligent manner in which they had investigated the crime, by complaining that they had wrongly assessed the evidential value of certain matters or had failed to interview possible witnesses whose evidence was thought by the accused to be favourable to him."

Furthermore, the authorities make it clear, as both Simon Brown L.J. and Auld L.J. observe, that where the immunity exists it is given to those who deliberately and maliciously make false statements; the immunity is not lost because of the wickedness of the person who claims immunity. There is also logical force in the reasoning of the two Lords Justices. If the immunity is given to a police officer who falsely says in the witness box or in his witness statement that when he pursued the accused from the scene of a robbery he saw him carrying a knife which the accused threw away in the course of the chase and which was not recovered, why should immunity not be given to a police officer who actually plants a knife on a man whom he has caught after a pursuit from the scene of a robbery and which is found on the accused by an honest police officer who subsequently searches him? If an honest police officer who gives truthful evidence in the witness box that he pursued the accused from the scene of a crime is protected by immunity against a vexatious action, why should an honest officer who gives truthful evidence that he found a knife on the accused not be protected by immunity from a vexatious action alleging that he and another police officer conspired to plant the knife?

However, notwithstanding the logical force of the view taken by the Court of Appeal in Silcott and in the present case, there are considerations of weight which point to a different conclusion. The predominant requirement of public policy is that those who suffer a wrong should have a right to a remedy, and the case for granting an immunity which restricts that right must be clearly made out. In Mann v. O'Neill (1997) 71 A.L.J.R. 903, 907 the judgment in the High Court of Australia of Brennan C.J., Dawson, Toohey and Gaudron J.J. states:

"the general rule is that the extension of absolute privilege is 'viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated'."

And in Roy v. Prior [1971] A.C. 470, 480F where this House held that a defendant was not entitled to the absolute immunity which he claimed, Lord Wilberforce stated:

"Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest."

Moreover there is a danger in extending the immunity given to a witness in court proceedings merely by analogy. In Mann v. O'Neill McHugh J. warned against:

"the temptation to recognise the availability of the defence for new factual circumstances merely because they are closely analogous to an existing category (or cases within the existing category) without examining the case for recognition in light of the underlying rationale for the defence."

And in Lincoln v. Daniels [1962] 1 Q.B. 237, where the defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen's Counsel, Devlin L.J. stated at page 263:

"It is not at all easy to determine the scope and extent of the principle in Watson v. M?Ewan. I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury's speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. I do not think that the same degree of necessity can be said to attach to the functions of the Bar Council in relation to the Inns of Court. It is a convenience to the public to have a central body to deal with, but that is as high as it can be put. In my judgment the defence of absolute privilege fails."

The underlying rationale for the immunity given to a witness is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court. This immunity has been extended, as I have described, to proofs of evidence and to prevent witnesses being sued for conspiracy to give false evidence. But the immunity in essence relates to the giving of evidence. There is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect's signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect. In practice the distinction may appear to be a fine one, as, for example, between the police officer who does not claim to have made a note, but falsely says in the witness box that the suspect made a verbal confession to him (for which statement the police officer has immunity), and a police officer who, to support the evidence he will give in court, fabricates a note containing an admission which the suspect never made. But I consider that the distinction is a real one and that the first example comes within the proper ambit of the immunity and the other does not.

A further consideration is that there are many situations in which false and vexatious accusations may be made against police officers but where the law does not give them absolute immunity when they are sued. These situations were referred to by Sir Richard Scott V. C. in Bennett v. Commissioner of Police for the Metropolis (1997) 10 Admin.L.R. 245, 254, in a passage which it is desirable to set out in full:

"Counsel have argued that the established immunity from action based on evidence given in court proceedings and from a negligence action against the police or the CPS in regard to the manner of discharge of their respective duties are all part of a general immunity that, for reasons of public policy, protects police and prosecutors from any action in tort based upon their discharge of their respective duties. This is, in my judgment, a wholly unacceptable proposition for a number of reasons. First, as Mr Newman for the plaintiff pointed out, the only connection between the immunity from suit based on evidence given in court proceedings and the freedom of the police and CPS from being burdened by a general duty of care in the conduct of their duties is that those rules are attributable to the requirements of public policy. But public policy has many manifestations and underlies very many rules of law. To argue that because for public policy reasons a blanket immunity from action is given in respect of evidence in court proceedings and because for public policy reasons the police and the CPS are relieved of a general duty of care to those who may be affected by the manner in which they discharge their duties it should therefore follow that the police and the CPS are entitled to a blanket immunity from suit arising out of the manner in which they discharge their duties is not, to my mind, respectable jurisprudence. On the contrary, it is clear law that neither the police nor the CPS are entitled to a blanket immunity against tort actions arising out of the manner in which they discharge their duties. Actions for malicious arrest or malicious prosecution can be brought. Actions against the police for assault, in using excessive force in effecting an arrest or in interrogating a suspect, can be brought. Why should an action for misfeasance in public office not be brought? I can see no reason why not. The police and the CPS, like everyone else, are subject in the discharge of their duties to the rule of law. There is no public interest that requires them to be afforded immunity against actions based on malicious or knowing abuses of their powers."